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The Nacol Law Firm PC
The Nacol Law Firm PC

Posts Tagged ‘attorney Mark Nacol’

Filing Whistleblower Complaints Under The Sarbanes - Oxley Act

Monday, July 26th, 2010

Employees who work for publicly traded companies or companies that are required to file certain reports with the Securities and Exchange Commission (SEC) are protected from retaliation for reporting alleged violations of mail, wire, bank or securities fraud; violations of rules or regulations of SEC; or federal laws relating to fraud against shareholders.

 

A company is covered by Section 806 of the Sarbanes-Oxley Act of 2002 if it has a class of securities registered under Section 12 of the Securities Exchange Act, or is required to file reports under Section 15(d) of the Act.  Its contractors, subcontractors, or agents may also be covered.

 

If an employer is covered under the Act, it may not discharge or in any manner retaliate against an employee because he or she:

 

  • provided information
  • caused information to be provided, or
  • assisted in an investigation by
  •  
    • a federal regulatory or law enforcement agency
    • a member or committee of Congress, or
    • an internal investigation by the company relating to an alleged violation of mail fraud, wire fraud, bank fraud, securities fraud, or violating SEC rules or regulations or federal laws relating to fraud against shareholders.

 

In addition, an employer may not discharge or in any manner retaliate against an employee because he or she filed, caused to be filed, participated in or assisted in a proceeding under one of these laws or regulations.

 

If an employer takes retaliatory action against an employee because he or she engaged in any of these protected activities, the employee can file a complaint with OSHA.

 

Your employer may be found to have violated one of these statutes if your protected activity was a motivating factor in its decision to take an unfavorable personnel action against you, such as:

 

  • Firing or laying off
  • Blacklisting
  • Demoting
  • Denying overtime or promotion
  • Disciplining
  • Denying benefits
  • Failing to hire or rehire
  • Intimidation
  • Reassignment affecting promotion prospects
  • Reducing pay or hours

 

Complaints must be filed in writing within 90 days after an alleged violation of the Act occurs (that is, when the complainant becomes aware of the retaliatory action) and must include the following information:

 

  • The name, address and phone number(s) of the person filing the complaint, or on whose behalf the complaint is being filed, must be included.
  • The names and addresses of the company(s) and person(s) who are alleged to have violated the Act (who the complaint is being filed against).
  • Sufficient detail to allege the four elements of a prima facie violation:
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    • The employee engaged in a protected activity or conduct;
    • The employer or named person knew or suspected, actually or constructively, that the employee engaged in the protected activity;
    • The employee suffered an unfavorable personnel action; and
    • The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action.

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Rights and Duties of a Parent Joint Managing Conservator in Texas

Sunday, April 25th, 2010

Rights and Duties of a Parent Joint Managing Conservator in Texas — Waiver
To the Guidelines is a Matter of Court Discretion

As a joint managing conservator of a child in a divorce proceeding in Texas, unless special circumstances arise justifying a variance from the Guidelines, the Court will normally order guideline code rights and duties and a parent will be awarded the following:

1.the right to receive information from any other conservator of the child concerning the health, education, and welfare of the child.

2.the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child.

3.the right of access to medical, dental, psychological, and educational records of the child.

4.the right to consult with a physician, dentist, or psychologist of the child.

5.the right to consult with school officials concerning the child’s welfare and educational status, including school activities.

6.the right to attend school activities.

7.the right to be designated on the child’s records as a person to be notified in case of an emergency.

8.the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.

9.the right to manage the estate of the child to the extent the estate has been created by the parent/conservator or the parent/conservator’s family.

10.the duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child; and

11.the duty to inform the other conservator of the child if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter.  IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the child begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate.  IT IS ORDERED that the notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged.  WARNING:  A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.

12.the duty of care, control, protection, and reasonable discipline of the child.

13.the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure.

14.the right to consent for the child to medical and dental care not involving an invasive procedure.

15.the right to direct the moral and religious training of the child.

16.Only one parent shall have the exclusive right to designate the primary residence of child in a specific geographical area, which is commonly the county in which the child currently resides and the contiguous counties thereto.

17.the right to consent to medical, dental, and surgical treatment involving invasive procedures may be subject to agreement, an independent right or an exclusive right;

18.the right to consent to psychiatric and psychological treatment of the child may be subject to agreement, an independent right or an exclusive right;

19.Only one parent shall have the exclusive right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;

20.the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child may be subject to agreement, an independent right or an exclusive right;

21.the right to consent to marriage and to enlistment in the armed forces of the United States may be subject to agreement, an independent right or an exclusive right;

22.the right to make decisions concerning the child’s education may be subject to agreement, an independent right a joint right or an exclusive right;

23.except as provided by section 264.0111 of the Texas Family Code, the right to the services and earnings of the child may be subject to agreement, an independent right or an exclusive right;

24.except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government may be subject to agreement, an independent right or an exclusive right; and

25.the right to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parent/conservator may be subject to agreement, an independent right or an exclusive right.

In accordance with section 153.001 of the Texas Family Code, it is the public policy of Texas to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, to provide a safe, stable, and nonviolent environment for the child, and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.  The Court will therefore normally establish the primary residence of the child in the county where the child currently resides and/or a contiguous county thereto, and the parties shall not remove the child from such county for the purpose of changing the primary residence of child until there is a modification to the existing order of the court of continuing jurisdiction or a written agreement signed by the parties and filed with the court.

The geographical restriction on the residence of the child may be lifted or modified if, at the time the primary parent with the right to establish residence wishes to remove the child from the county for the purpose of changing the primary residence of the child, the other parent does not reside in that county or a contiguous county thereto.

Time constraints, employment issues of the primary Joint Managing Conservator, and other material factors may come into play when a Joint Managing Conservator requests waiver of the geographical restrictions.  It customarily is a very difficult, but not always insurmountable, burden to achieve a geographical restriction waiver.  The success, consistency and regularity of the non-primary conservator’s possession and access to the child is a factor the court will view in making a ruling.  Frequently, an agreement to adjust the amount of support and/or transportation costs comes into play in resolving such disputes.

For professional legal counsel on family law and divorce issues in the DFW Metroplex area, contact Dallas divorce attorney Mark Nacol.

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Supervised Visitation - Part II

Monday, April 12th, 2010

I Have Been Ordered Into Supervised Visitation With My Child –

Is it Possible to Return to a Standard Possession Order?

In a perfect world, parents going through the divorce process work together for the best interest of their child(ren) and are allowed possession of the child(ren) approximately fifty percent of the time.  However, issues such as drug addiction, mental or physical abuse, neglect, and severe mental illness may force a parent to petition the courts to order limited or supervised visitation.  On rare occasions, a parent is regrettably ordered into supervised visitation due to false or misleading information.  Regardless of the circumstances, court ordered supervised visitation is costly, may substantially limit the amount of time a parent is allowed to spend with their child, and can create a difficult transition into a standard possession order. 

If the court has ordered supervised visitation, seek proper counsel from a qualified attorney.  If a case, rightly or wrongly, has been established for supervised visitation by the evidence or circumstances or court order, you will need to build a case for standard or standard expanded possession.

During a supervised visit it is imperative that you keep any comments on the case to yourself. Avoid giving any opinions on the existing judgment or the supervised visitation order.  Within reason, limit your conversation to what is strictly necessary for the child to have a safe, happy and healthy visit. Be polite and courteous with the monitor even if you develop strong negative feelings regarding him or her.  Continue to enforce the importance of seeing your child and spending quality time with your child whenever possible.  Never, under any circumstances, talk negative about the other parent to or in the presence of the child or the monitor.  Never, use vulgar or abusive language toward or in the presence of the child or the monitor.  The visitation monitor may be an important asset at future hearings regarding a change from supervised visitation to a standard or expanded possession order. 

Make every scheduled visit without fail.  If unable to make a scheduled visit, contact the monitor as soon in advance as possible with an appropriate explanation and request an alternative date.  Bring family members whenever possible and clear it with the visitation monitor prior to their attendance.  Bring cards and gifts, not only from you but from family members.  If visits are going well, request off-site visits at a nearby restaurant or park.  Though visits may be costly, the more frequent you are observed in a loving relationship with your child, the better the chance of supervised visitation being suspended. 

Involve a psychiatrist or qualified counselor in your visitation schedule if at all possible.  Such professionals are key as you begin to build your case for standard possession since they are able to make suggestions to the Court as to how visits are progressing and the manner in which standard possession can be accomplished. 

If you have been ordered to have drug or alcohol testing performed, take each test as scheduled and make certain you are free of drugs and alcohol.  A positive drug or alcohol test may place you back at square one and undermine your progress. 

If a social study is ordered, dispose of any prescription drugs not needed or which are out of date and put away any alcohol in your home.  Make certain your home is clean and orderly when the evaluation is performed.  In such cases, a qualified professional will come to your home and evaluate the environment for the best interest of the child.  If you have been ordered into supervised visitation because of drugs or alcohol, it is imperative that these items not be sitting around the home when a social worker is performing his/her evaluation, in order to not suggest an invalid conclusion.

Keep your child support current.  If the supervised visitation is placing a financial strain on you ability to pay child support, have an attorney address modifying your child support in a Motion to Modify.  It is counterproductive to request unsupervised visitation if you are not current in your financial responsibility toward your child.

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